Intestate Succession Act

Intestate is a term used to describe a person who dies without leaving a valid will. A person can also be partially intestate, which occurs when a valid will exists but does not make provision for all assets within the deceased estate. In Australia, intestacy is part of succession law. Succession law includes both acts of parliament (legislation) and law made by the courts (common law). There is no single intestate succession act in Australia. This is article lists the legislation that exists in each state and territory in relation to intestate estates and provides a broad overview of the way succession law distributes an intestate estate.

No Intestate Succession Act in Australia

There is no single intestate succession act governing intestate estates across Australia because succession law is not covered by federal legislation. Unfortunately, this means that succession law can be very complex, and it makes it difficult for family members to manage an intestate estate. Families that have to deal with an intestate estate need to consult a solicitor with expertise in a particular state or territory, especially when the estate contains significant assets or where there is likely to be a number of competing beneficiaries.

The administrator of an intestate estate must comply with the legislation in force in each state and territory, including both succession laws and other applicable legislation such as taxation law. Succession and intestacy laws in each jurisdiction include:

Queensland

• Succession Act 1981
• Trusts Act 1973

New South Wales

• Succession Act 2006
• Probate and Administration Act 1898
• Trustee Act 1925

Victoria

• Wills Act 1997
• Administration and Probate Act 1958
• Trustee Act 1958

South Australia

• Wills Act 1936
• Administration and Probate Act 1919
• Inheritance (Family Provision) Act 1972
• Trustee Act 1936

Australian Capital Territory

• Wills Act 1968
• Administration and Probate Act 1929
• Family Provision Act 1969
• Trustee Act 1925

Northern Territory

• Wills Act 2000
• Administration and Probate Act 1969
• Family Provision Act 1970
• Public Trustee Act 1979

Western Australia

• Wills Act 1970
• Administration Act 1903
• Family Provision Act 1972
• Trustees Act 1962

Tasmania

• Wills Act 2008
• Administration and Probate Act 1935
• Intestacy Act 2010
• Testator’s Family Maintenance Act 1912
• Trustee Act 1898

How are intestate estates distributed without an intestate succession act?

A combination of the legislation listed above, and common law precedent in each jurisdiction, determines who is entitled to inherit property from an intestate estate. Although the legislation differs across jurisdictions, generally it establishes a descending priority list of recipients, with the surviving spouse of the deceased first, and any children of the deceased second.

The division of an estate between a spouse and children also differs across jurisdictions, with the size of the estate a determinant of whether any assets are inherited by the children of the deceased. Smaller estates may be inherited entirely by the surviving spouse, but larger estates are divided in most jurisdictions. In addition, classes of assets are distributed differently according to jurisdiction, with a spouse usually inheriting personal possessions and household goods. In some locations, a spouse will also be entitled to inherit the matrimonial home, even if the spouse is not a joint tenant and regardless of the size of the deceased estate.

If the deceased has no spouse or children, then other close family members will inherit the assets of the estate according to legislatively proscribed priority. If there is no close family, the assets will be distributed to more distant relatives, which in some jurisdictions could include as distant a relation as a third cousin. If no family members are located, the entire estate, after payment of any debts and funeral expenses, will pass to the state.

Laws Governing Debt in Intestate Estates

Succession law in each state determines the procedure for the payment of debts from the intestate estate. If the estate does not have sufficient assets to discharge all debts, priority will be given to the payment of tax debts and secured debts. If all debts cannot be satisfied, a creditor can apply to make the estate bankrupt.

Other Laws Governing Intestate Estates

In addition to succession law, other legislation is of particular relevance to deceased estates. Examples include laws that determine how child support accrues and how arrears are recovered; laws governing bankruptcy and the repayment of debts to the Commonwealth including HELP-HECs; and legislation that governs the payment of federal taxation. Taxation law is important because one of the key duties of an administrator is likely to be the lodgement of a final individual tax return for the deceased. In some cases, a trust tax return will need to be lodged each year until the estate has been fully administered. A solicitor can be engaged to help support an executor or administrator to manage the obligations under this legislation.

Armstrong Legal has experts in succession law for each jurisdiction and can help you understand how to proceed. For more information on intestate succession acts or the consequences of leaving an intestate estate, please call Armstrong Legal on 1300 038 223 or send us an email to make an appointment.